Court File and Parties
COURT FILE NO.: 16-0083 DATE: 2019-07-12 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – Tyler Gowan Appellant
COUNSEL: M. Karimjee, counsel for the Respondent D. Anber, for the Appellant
HEARD at Ottawa: June 12, 2019
DECISION ON SUMMARY CONVICTION APPEAL
A.D. KURKE, J.
Overview
[1] The appellant appeals against his March 23, 2018 conviction by Kehoe J. for operating a motor vehicle with over 80 mgs of alcohol in 100 mls of blood (“Over 80”), imposed after trial in the Ontario Court of Justice.
[2] The appellant asserts legal errors by the trial judge, in that:
a. the trial judge did not find breaches of the appellant’s ss. 8 and 10(b) Charter rights. b. the trial judge’s reasons were insufficient in several respects.
[3] If the court agrees that there was a Charter violation, the appellant seeks exclusion of the approved instrument analyses of samples of the appellant’s breath, and acquittal. If this court finds that the trial judge’s reasons were insufficient, the appellant seeks a new trial.
[4] For the reasons that follow, the appeal is dismissed. In the circumstances of this case, there was no breach of the appellant’s section 8 Charter right. With respect to s. 10(b) of the Charter, I find either that there was no breach of the right, or if there was a breach, that there should be no exclusion of evidence. Further, the trial judge’s reasons were sufficient to explain her reasoning with respect to the issues of the case.
Facts
[5] On July 31, 2016, the appellant was involved in a single-vehicle accident on Hwy 417 in Ottawa. He struck a barrier dividing the highway and the off-ramp at Kent Street. Officers with the Ontario Provincial Police arrived on scene at 2:17 a.m.
[6] Cst. Boucher approached the appellant, who was standing on the off-ramp. At 2:22 a.m. the officer detected the odour of an alcoholic beverage from the appellant’s breath. Cst. Boucher proceeded to ask questions to gather grounds for an approved screening device (ASD) demand. In response to questions from Cst. Boucher, the appellant told the officer that he had been drinking, that he had had two beers, that his last drink was 45 minutes prior to the collision. He also told Cst. Boucher that he was the only one in the car, and that he had been driving. The appellant then answered that he had had no further alcohol after the collision.
[7] The officer asked the appellant to accompany him to the police cruiser for an ASD demand, as the officer had left the card with the demand wording in his notebook in the cruiser, because the notebook with the police cards and the necessary wording were bulky in the officer’s vest. They walked to the cruiser where the officer retrieved the ASD from the back seat and made notes on his “dash pad” in his cruiser about the time he detected the smell of alcohol and his discussion with the appellant. The officer then made the ASD demand to the appellant from the police card at 2:26 a.m.
[8] Prior to the appellant’s sample, the officer demonstrated to the appellant how the ASD test was to be performed. The officer blew a sample of his own breath into the ASD which registered “zero milligrams”. The officer therefore believed that the ASD was “working properly”. The officer also explained to the court his understanding of the calibration of the ASD: between 50 and 100 mgs of alcohol in 100 mls of blood, the ASD will show “alert”; over 100 mgs, “it’s a fail”. At 2:29 a.m. the appellant’s own breath sample registered a “fail” on the ASD, providing grounds for arrest.
[9] At 2:31 a.m., the appellant provided a suitable breath sample which registered a “fail” on the ASD. Cst. Boucher arrested the appellant for “Over 80”. The appellant was handcuffed. The officer asked the appellant for his licence, ownership and insurance, and the appellant could not locate his wallet. The appellant was afraid that he had dropped it on the off-ramp and appeared quite concerned.
[10] The officer out of “compassion” told the appellant that they would look for the wallet and delayed providing the right to counsel (RTC) to the appellant, because the appellant was worried the wallet would disappear. The officer spoke to fire fighters and paramedics on scene, and looked around, with no success. The appellant then told the officer that he had perhaps left the wallet in his vehicle, which was already loaded on the flatbed of a tow truck. At the request of Cst. Boucher, the tow truck driver was able to locate the wallet in the vehicle and he provided it to the officer. The officer then returned to his cruiser with the appellant. He searched the appellant and placed him in the rear of the cruiser.
[11] At 2:41 a.m., the officer read the right to counsel to the appellant, who indicated that he understood. The Intoxilyzer demand was made upon the appellant at 2:43 a.m. At 2:46 a.m. the appellant indicated that he did wish to speak to a lawyer. The officer recorded the appellant’s responses to questions on his dash-pad.
[12] Ultimately, the officer transcribed everything from the dash-pad into his notebook and destroyed the dash-pad notes.
[13] The OPP had only one breath technician on duty that night, Cst. Pasta, who was conducting a test at the General Hospital. Cst. Boucher asked if Cst. Pasta could conduct the appellant’s testing at the hospital and was told that he could. They left the scene at 2:49 a.m. and arrived at the hospital at 2:56 a.m. At 3:00 a.m., Cst. Boucher located Cst. Pasta and the Intoxilyzer.
[14] At 3:02 a.m. the appellant used the washroom. Between 3:03 a.m. and 3:13 a.m. Cst. Boucher put the appellant in touch with a Legal Aid lawyer and the appellant spoke with that lawyer. At 3:15 a.m. the appellant complained of soreness, for which he wanted treatment. The appellant was busy with hospital registration until 3:25 a.m., when Cst. Pasta came out and spoke with Cst. Boucher, who provided his grounds to the breath technician. At 3:27 a.m. Cst. Boucher attended to urgent care with the appellant and from there waited for breath testing with Cst. Pasta in emergency care from 3:34 a.m.
[15] Cst. Pasta was busy with his other breath subject until 3:44 a.m. when Cst. Boucher turned over the appellant to him. The appellant had provided two samples of his breath, which resulted in analyzed readings of 144 and 133 mgs of alcohol in 100 mls of blood. At 4:19 the appellant was returned to Cst. Boucher, who released the appellant on an appearance notice, because the appellant was still waiting to be seen by the doctor.
Issue 1: Were the appellant’s sections 8 and 10(b) Charter rights breached?
Section 8: “Forthwith”
[16] The issue is a narrow one: was the ASD demand made “forthwith”, given the four minutes that intervened between 2:22 a.m., when Cst. Boucher noted the odour of alcohol from the appellant’s breath, and 2:26 a.m., when the officer read the ASD demand from his card at his cruiser? In my view the demand was made forthwith.
[17] Section 254(2)(b) of the Criminal Code provides that a peace officer with reasonable grounds to suspect that a person who has been operating a motor vehicle within the preceding three hours has alcohol in his body, may make a demand of that person to provide “forthwith” a breath sample for analysis into an ASD.
[18] The “forthwith” requirement applies to the obligation of the recipient of the demand to provide a sample, and also to the steps to be taken by the peace officer: R. v. Pierman; R. v. Dewald (1994), 19 O.R. (3d) 704 (C.A.), at para. 5. The term “forthwith” conveys a sense of promptness but may be given a more flexible interpretation in unusual circumstances, generally to ensure an accurate result of a proper breath sample: R. v. Quansah, 2012 ONCA 779, at paras. 16, 45-49. What generates the need for promptness by the police is the fact that the right to counsel is suspended during detention for roadside breath testing: R. v. MacMillan, 2013 ONCA 109, at paras. 30-36.
[19] Cst. Boucher carried out many discrete actions between 2:22 a.m. and 2:26 a.m. The odour of alcohol from the appellant’s breath was an essential observation at 2:22 a.m., but not the only information required for an ASD demand. Questions and answers followed to determine potential quantity of alcohol in the appellant’s body, to ensure that there was no residual alcohol or “after-the-fact” drinking, and, importantly, to provide grounds that the appellant was the driver. The officer then told the appellant that a demand would be made at the cruiser, and the two walked from the off-ramp to the police vehicle. Cst. Boucher retrieved the ASD from the back of the cruiser, and then jotted a few notes to capture for future recollection the grounds for the ASD demand.
[20] For the trial judge, the “forthwith” requirement was met in the circumstances of this case. The trial judge found no “unreasonable delay” in making the formal demand nor in making brief notes before the demand. The change of location of the officer and the appellant to the cruiser satisfied a safety concern, among other things. The trial judge found that the note making by the officer was “momentary”, as she was entitled to find.
[21] The point that must not be lost in all of this - the “primary factor” - is that the goal of the “forthwith” requirement is “the avoidance of a lengthy detention while a detainee is deprived of the right to consult counsel”: R. v. MacMillan, at para. 35.
[22] In the circumstances of so many small discrete tasks that either had to be done, or, in the case of the note taking, created only momentary delay, the formal breath demand cannot be said to have fallen afoul of the need for immediacy. From the point at which Cst. Boucher detected the odour of alcohol to the point at which he read the breath demand was a matter of four minutes, during which Cst. Boucher never cavalierly disregarded his duty to focus on the task at hand. The principle behind the “forthwith” requirement was upheld in this case, as properly found by the trial judge.
[23] This ground of appeal fails.
Section 10(b): Right to counsel “without delay”
[24] The appellant complains that his right to counsel was breached because Cst. Boucher, instead of providing him his right to counsel upon his arrest at 2:31 a.m., spent some ten minutes looking for the appellant’s misplaced wallet, and only explained his right to counsel at 2:41 a.m. For the following reasons, I find no breach of the appellant’s right to counsel. If I am wrong in that determination, I find that any breach of the right to counsel is technical, and would result in no exclusion of evidence.
[25] Section 10(b) of the Charter provides that: “[e]veryone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right”.
[26] In the context of a detention, when the detained individual is in the control of the police, “the words ‘without delay’ mean ‘immediately’ for the purposes of s. 10(b)”: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 41-2. Suberu and cases that follow it generally offer more leeway for the facilitation of the right to counsel than in advising a detainee about the right: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 24. On the other hand, the police duty to provide the right immediately has long been held to bend in urgent or dangerous circumstances: R. v. Manninen, [1987] 1 S.C.R. 1233, at para. 22.
[27] On the facts of this case, I agree with the trial judge that there was no breach of the appellant’s right to counsel. The appellant’s reasonable concern about his misplaced wallet generated in Cst. Boucher a commendable and appropriate sense of the urgency of the appellant’s plight. For Cst. Boucher to have provided the right to counsel to the appellant when he was preoccupied by his missing wallet, would have achieved nothing but a different basis for a Charter application. To find a s. 10(b) violation in the circumstances of this case would be to encourage police robotically and callously to disregard the realities of the individual case, and to preserve the letter at the expense of the spirit of the law. The sense of urgency generated in the appellant by his missing wallet justified Cst. Boucher in delaying the right to counsel for a brief period until the wallet was found.
[28] However, if Suberu does demand a different finding, the result at trial must be the same, because a proper s. 24(2) analysis results in admission of the breath results. It was kindness and good faith that motivated Cst. Boucher’s delay in providing the right to counsel, thereby occasioning only a technical breach of the right to counsel. The brief 10-minute delay had minimal impact on the appellant, who at that point was plainly most interested in recovery of his wallet. Finally, the breath testing in the approved instrument was minimally intrusive, and produced evidence that was reliable and central to the Crown’s case. No exclusion of evidence would result under a proper s. 24(2) analysis: R. v. Gordon, [2018] O.J. No. 2092 (Sup. Ct.), at paras. 56-60; R. v. Grant, 2009 SCC 32, at paras. 108-111.
[29] This ground of appeal fails.
Issue 2: Were the trial judge’s reasons for convicting the appellant sufficient?
[30] The appellant argues that the trial judge’s reasons were insufficient with respect to:
a. Whether the Crown had established that Cst. Boucher had reasonable and probable grounds to arrest the appellant for the “Over 80” offence; b. Whether the breath samples into the Intoxilyzer were taken “as soon as practicable”; and c. Whether there was significance to the appellant’s fair trial rights that Cst. Boucher had destroyed his dash-pad notes.
[31] For the reasons that follow, I find no merit in any of these arguments.
Sufficiency of reasons
[32] Concerning sufficiency of reasons, a trial judge is required in his or her reasons to provide the logical basis for a verdict or decision by explaining the basis for it in the context of the evidence, the submissions of counsel and the history of how the trial unfolded: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 17. However, the trial judge is not required to set out every finding or conclusion made along the way in the process of rendering a decision: R. v. Wolynec, [2015] O.J. No. 5051 (C.A.), at para. 57. What are to be avoided are generic reasons that effectively amount to no reasons: R. v. Sheppard, [2002] S.C.J. No. 36, at para 32.
[33] I now turn to the specific areas of concern raised by the appellant.
Reasonable and probable grounds
[34] The appellant argues that the trial judge’s reasons were insufficient to permit meaningful appellate review concerning the issue of reasonable and probable grounds. The appellant says that the trial judge did not respond sufficiently to the appellant’s argument that the arresting officer could not rely on the “fail” result from the ASD to form grounds to arrest, because there was no preliminary finding of fact that the officer had a reasonable belief that the ASD was properly calibrated and in working order.
[35] I disagree. The appellant seeks to bypass the legal issue of whether the officer properly relied on the ASD in his formulation of grounds to arrest by presenting it as an argument about sufficiency of reasons. In either case, the argument fails.
[36] Police officers may rely on “fail” results from an ASD for grounds to arrest for “Over 80”. The arresting officer may rely on the accuracy of the ASD unless there is credible evidence to the contrary. However, the officer must have a reasonable belief that the ASD was calibrated properly and in working order before relying on the “fail” result, although the Crown need not prove the ASD’s calibration or that it was working properly: R. v. Beharriell, 2014 ONSC 1100, [2014] O.J. No. 882 (Sup. Ct), at para. 56.
[37] The trial judge found that once the appellant “failed the ASD test, PC Boucher had reasonable and probable grounds to arrest” the appellant for the “Over 80” offence. The evidence of Cst. Boucher included evidence of the actual calibration of the ASD, the self-test performed by the officer, and his belief that the ASD was working properly. Cst. Boucher explained the reasons for his reliance on the ASD result, including the calibration of the ASD and the result of the self-test. Those grounds were objectively sufficient and justified the officer’s belief in the proper functioning of the ASD.
[38] In the context of that evidence, the trial judge’s reasons sufficiently set out her finding that the ASD “fail” did give the officer grounds to arrest the appellant for “Over 80”. That finding was not the verdict. It was merely a step along the way. The trial judge did not need to offer further elaboration and cannot be made to do so simply because of the extensive submissions on the point that were filed by the appellant: R v. Newton, [2006] O.J. No. 1008 (C.A.), at paras. 3-4. The trial judge’s reasons show that she was not persuaded by those submissions. Neither am I.
As soon as practicable
[39] The appellant argues that the trial judge gave insufficient reasons in finding that the appellant’s breath testing on the approved instrument was done “as soon as practicable”, thereby permitting the Crown evidentiary assistance in proving the “Over 80” offence, pursuant to s. 258(1)(c)(ii) of the Criminal Code. The appellant asserts four areas that should have been addressed, but were not: why only one breath technician was on duty for the OPP; why police did not bring the appellant to the nearby Ottawa Police Service headquarters for breath testing; a seven-minute unexplained delay between 3:17 and 3:24 before breath testing; and a delay occasioned by another person’s testing in priority to the appellant’s.
[40] In my view, the judge provided adequate reasons on the issue of “as soon as practicable”.
[41] The touchstone for determining whether breath tests have been taken as soon as practicable, so as to permit the Crown an evidentiary aid in proving an accused person’s blood-alcohol concentration, is whether police acted reasonably. A trial judge should look at the whole chain of events leading up to the taking of breath samples, bearing in mind the two-hour outside limit from the time of the offence to the taking of the first breath samples: R. v. Vanderbruggen, [2006] O.J. No. 1138 (C.A.), at paras. 12-13.
[42] The trial judge recognized that Cst. Boucher took the appellant to the hospital, where breath technician Cst. Pasta was located and the approved instrument had been set up. The trial judge considered the various things that took place at the hospital prior to the appellant’s breath testing: the appellant used the washroom; arrangements were made for the appellant to speak to counsel in a private room; the appellant was taken to hospital registration and registered, because his shoulder, hands and ribs were sore and he wanted to see a doctor; Cst. Boucher provided grounds to Cst. Pasta; the appellant and Cst. Boucher attended to urgent care and then emergency. At 3:34 a.m., the appellant was available for testing, but Cst. Pasta was busy with his other testing subject until 3:44. A more detailed accounting than this was not required of the trial judge: Vanderbruggen, at para. 13.
[43] The trial judge properly held on all of this that Cst. Boucher was alert to time constraints, that there was no unexplained delay. The trial judge observed that the first breath test was completed within the two-hour limit. Woven throughout her reasons was the trial judge’s recognition that the appellant had been in an automobile accident, and of the efforts made by Cst. Boucher to ensure that the appellant was tended to medically, even in the context of the police requirement to conduct breath tests “as soon as practicable”.
[44] Given the overlapping needs of the appellant for medical care and of the police to take and analyze breath samples from the appellant, as recognized by the trial judge in her reasons, most of the appellant’s arguments concerning lapses in the reasons of the trial judge fall away. Because the appellant needed to attend at the hospital anyway, it was appropriate to do so for breath testing; Cst. Pasta was already there with the approved instrument. Attendance at the Ottawa Police Service headquarters would not have permitted breath testing while the appellant awaited medical attention. In this case, there was no need for the judge to embark on any inquiry into the proper organization of police personnel and equipment, as the organization that was in place that morning furthered the appellant’s needs: R. v. Letford, [2000] O.J. No. 4841 (C.A.), at para. 19.
[45] The trial judge properly acknowledged that the appellant had to wait until Cst. Pasta had completed breath testing of another individual before his own tests could be performed. Nevertheless, this delay was explained by police, and unexceptionable. The Crown must prove that the testing was done “as soon as practicable”, and not at “the very earliest moment”: R. v. Cresswell, [2001] O.J. No. 4168 (Sup. Ct.), at para. 9, aff’d [2002] O.J. No. 2492 (C.A.). The trial judge gave sufficient reasons in the context of this trite point.
Destruction of the dash pad notes
[46] The appellant complains that the trial judge gave insufficient reasons concerning Cst. Boucher’s destroyed dash-pad notes, in that the lost notes could have provided evidence relevant to the “forthwith” issue, and their destruction therefore created prejudice to the appellant.
[47] I reject the appellant’s argument. The trial judge’s reasons were sufficient to explain the route she followed to her conclusion, and the appellant’s concern about the potential value of the evidence is speculative.
[48] Here, Cst. Boucher’s evidence was clear: he jotted various things onto his dash-pad when he got to his cruiser with the applicant for the ASD test, “and then I later transcribed it verbatim…to my notebook here”, before discarding the dash-pad notes. The trial judge found that the destruction of the notes was “not a good decision”. However, there was no evidence that anything was missed, or of any prejudice to the appellant’s ability to make full answer and defence.
[49] Where potential evidence has gone missing, any remedy requires a showing of prejudice from the loss. Prejudice arises to the fair trial interest of an accused where there is an air of reality that the missing evidence would have assisted the accused in a material way. It is not enough that the loss of evidence makes it more difficult for an accused to advance a particular defence; rather, for prejudice to be found, the lost evidence must prevent the accused from advancing the defence. The existence of other evidence that contains the same information is an important consideration: R. v. Bradford, [2001] O.J. No. 107 (C.A.), at para. 8.
[50] The trial judge made a factual finding that nothing was missed in the transcription of the dash-pad notes into Cst. Boucher’s notebook, which was a reasonable finding on the evidence. There is no air of reality to any suggestion that the dash-notes could have contained something further to assist the appellant in the “forthwith” argument; there is nothing in the evidence that supports such a suggestion. The officer’s notebook was available to the appellant, and the appellant was able to advance his “forthwith” argument, and did so. The trial judge’s reasons properly responded to the appellant’s issue.
[51] This ground of appeal fails.
Conclusion
[52] The appeal is dismissed.
The Honourable Mr. Justice A.D. Kurke